Simple Jury Persuasion: The “consider the opposite” strategy

Hindsight bias is always present in litigation, as it is in other aspects of life. And we are always looking for ways to monitor and assess its impact as jurors weigh issues in litigation. Recently we wrote about being aware of the hindsight bias and how it can be strengthened by the perspective taken by visual animations. Today, we want to highlight one of the most powerful ways to reduce hindsight bias: the “consider the opposite” strategy.

As you likely recall, hindsight bias refers to our tendency after-the-fact to see events that have already occurred as being more predictable than they were before they took place. This bias is also known as ‘Monday-morning quarterbacking’. Our mock jurors provide lots of examples of hindsight bias in our pretrial research.

Your task is almost always to find ways to reduce the hindsight bias so that observers can better see the same picture your clients saw prior to whatever event now being litigated, or otherwise use this aspect of human nature to your client’s best interest. Today, we will explore research on how to minimize its impact.

To use the “consider the opposite” strategy, you ask participants to simply consider alternatives that could have happened and talk about how they might have occurred just as readily as the real outcome. When observers do this, they are able to see the multiple outcomes that “could have happened” much more clearly and their tunnel vision (aka hindsight bias) surrounding the event dissipates. According to the authors, the fact this strategy works has been shown in such diverse fields of inquiry as accounting, political analysis, policy analysis, legal judgments, and judgments of historical and scientific outcomes.

In fact, it is also commonly used in litigation. It often takes the form of “if only…”. “If only she had sought a second opinion…”; “If only he had gone in for the follow-up test”; “If only they had gotten a routine brake inspection…”.

There is, however, an interesting caveat. Research has most often focused on asking participants to identify one or two alternate outcomes. However, some researchers have asked their participants to identify as many as ten potential alternate outcomes. That’s a lot harder to do than identifying one to three. And participants don’t like it. So it backfires and makes the hindsight bias stronger, rather than weaker.

The authors explain it this way:

“If it feels subjectively difficult to generate many additional reasons for how an alternative outcome (i.e., counterfactual) could have occurred, then the decision maker may interpret this difficulty as an indication of the implausibility of those alternatives, which would then reinforce rather than mitigate hindsight bias regarding the outcome that did occur.”

In other words, if I have to do the work of generating (or evaluating) up to ten alternate outcomes for a given situation–that’s hard work. If it’s such hard work, the alternate outcomes must not be plausible or probable. So my initial explanation (reeking of hindsight bias) is likely still the best fit for the situation.

To avoid this sort of backfire in your strategy to reduce the hindsight bias, the authors recommend using no more than two or three alternate explanations. And the easier they are to imagine, the better.

You can accomplish this with expert witness testimony when you ask for alternate ways the data can be explained.

You can represent the alternate outcomes into visual evidence that accompanies jurors to deliberations.

And you can imbed them into your closing statement.

When it comes to reducing hindsight bias using the “consider the opposite” strategy, less is truly a whole lot more effective.